It is improper for an attorney representing a criminal defendant to enter into an arrangement for a contingent fee.

It is not improper for such an attorney to take a note evidencing a balance on an agreed fee which bears a lawful interest rate comparable to that charged by lending institutions. Any transfer of assets to perfect a security interest under such a note should not be absolute in form, but should clearly reflect its nature as one of a security interest.

Canons: 12 and 13CPR: DR 2-106(C)Opinion: 68-61

Chairman MacDonald stated the opinion of the committee:

A member of The Florida Bar proposes the following questions:

May an attorney contract with his client, in a criminal case, that the fee will be a certain amount, to be paid in advance, providing, however, that in the event of a guilty verdict, or, in the event of sentence being imposed whereby the defendant spends time in a jail or prison, the attorney will refund a given amount of the fee previously paid?

Suppose that the situation is similar to that posed in Question One except that the agreement between the attorney and his client provides that the client must pay the attorney a given amount by a certain time, prior to the trial, and that he must then pay the attorney a fixed additional amount provided, however, that there is not a guilty verdict, or, if there is a guilty verdict, provided that there is not a sentence imposed resulting in the defendant being sent to a jail or prison?

May an attorney representing a criminal defendant take all or a portion of his fee in the form of a promissory note, bearing a reasonable interest and, may he also, if assets are available, secure such note with a mortgage covering such assets?

In a situation similar to Question Three, may an attorney, if the client agrees, take title to the defendant's automobile or title to some other assets, either real or personal, under an agreement whereby the attorney will be permitted to retain such assets and sell them in the event that the client does not pay whatever fee was agreed upon between the attorney and the client?

The Committee has previously and informally answered questions three and four, but because of the pendency of the petition for adoption of the Code of Professional Responsibility in Florida it has withheld rendition of an opinion as to questions one and two. The Code of Professional Responsibility has now been adopted in Florida effective October 1, 1970. DR 2-106(C) provides as follows:

A lawyer shall not enter into an arrangement for, charge, or collect a contingency for representing a defendant in a criminal case.

Accordingly, questions one and two must be answered in the negative.

With reference to the remaining questions, we are of the view that there is no reason why with full disclosure a lawyer may not take a note evidencing a balance on an agreed fee and that the same may bear lawful interest comparable to that charged by lending institutions, see our Opinion 68-61.

Any transfer of assets to perfect a security interest in connection with such a note should, of course, not be absolute in form, but should clearly reflect its nature as one of a security interest. Of course, there are onerous rules of law presumptively invalidating transactions between client and counsel and any attorney endeavoring to protect his fee arrangement by such a transaction must be ever watchful to meet the stringent requirements imposed by these rules of law.